Employers promoting diversity could be breaching anti-discrimination law

Campaign group Stonewall's workplace equality index published this week shows that even the most traditional of organisations are now promoting diversity. Take the police, for example. Whereas a few years ago the force had a bad reputation for ëgay-friendlinessí, now Hampshire and Staffordshire police forces have come third in Stonewallís annual index which scores organisations on their efforts to ensure gay employees thrive at work.

While this is a welcome development, employers promoting diversity risk breaching anti-discrimination laws. The more imaginative organisations are in trying to enhance diversity in their workplace the more likely they are to breach anti-discrimination law, according to a new report by law firm Nabarro.

The report reveals that contradictions between what employers are doing to promote diversity and the requirements of UK and EU anti-discrimination law are becoming increasingly stark. The more energetic employers are in promoting diversity, the more they risk falling foul of the main prohibitions on discrimination. For example, diversity strategies often include ëpositive actioní measures designed to make workplaces more representative, yet the scope for such measures in much of UK and EU anti-discrimination law is very narrow. Aspirational targets are lawful, but quotas are not and are considered positive discrimination, which is unlawful in the UK.

Sue Ashtiany comments:

ìEmployers must avoid the ill-considered and superficial adoption of fashionable elements of diversity. Woolly plans run the risk of resulting in negative publicity and expensive litigation. The encouragement that diversity thinking gives to organisations to define diversity for themselves can lead to a perception that they are safe as long as they stick to their home-grown diversity strategy.î

Examples of unlawful behaviour include:

- Targeting shortlists at women or ethnic minority candidates

- Recruiting specifically from areas with high ethnic minority concentration

- Pooling only women or ethnic minority employees for promotion

If you would like a copy of the report or to speak to Sue Ashtiany then please contact Corrie Stirling-Aird on 020 7566 9719.